Video: St. Paul police deploy pepper spray to suspect's ear

Eric Hightower refuses to cooperate as police attempt to arrest him, then screams when he is sprayed with pepper spray

By Mara H. Gottfried
Pioneer Press, St. Paul, Minn.

ST. PAUL, Minn. — While a bystander's YouTube video shows the kick that a St. Paul police officer delivered to a man lying on the ground last year, a newly released squad car video is the first public glimpse of what happened in the back of the squad.

The video shows another St. Paul officer drag the handcuffed man into the squad by the hair and deploy pepper spray into his ear.
Eric Hightower reacts by screaming, "He sprayed me in my ear. Ahhhh! Ahhhh, sir! My ear, my eye! Please!"

Hightower was resisting being placed in the squad car when officer Matthew Gorans stepped in, according to prosecutors who reviewed the case and declined to file charges against him or officer Jesse Zilge, who kicked Hightower.

Police conducted an internal affairs investigation, and Chief Thomas Smith recently decided to terminate Gorans and suspend Zilge for 30 days, sources said. However, the discipline isn't final because the officers are going through the union grievance process and they remain listed as St. Paul police employees.

Jeff Martin, St. Paul NAACP president, said Monday that he thinks the officers should lose their jobs.

"As a taxpayer in St. Paul, I don't want that type of officer protecting and serving my interests," he said.

St. Paul Police Federation attorney Chris Wachtler said in a statement that officers in the case were "dealing with a known dangerous individual who refused to follow directives, at a time when very dangerous conditions posed a threat to officer
safety."

Gorans was the subject of an earlier internal affairs investigation that concluded he used excessive force in a 2010 arrest. The man arrested sued the city, which settled the suit in 2012 for $249,000.

Smith suspended Gorans for three days after the internal investigation, writing in a May 2012 letter about that case: "Your actions displayed not only conduct unbecoming a St. Paul police officer, but actions that indicate a lack of self-control. ... Future acts of the same, or similar, behavior will result in increased discipline up to and including termination."

The more recent internal affairs investigation into Zilge and Gorans came after their involvement in the Aug. 28 arrest of Hightower, after the 31-year-old man was accused of threatening to kill a former girlfriend.

A friend of Hightower's videotaped the arrest and gave it to another friend, who posted it to YouTube on Aug. 29. That video showed Zilge kicking Hightower once, which Hightower has said connected with his chest and chin. Gorans' actions in the back of the squad car weren't seen in the video.

'I'M BURNING, MAN!'
Zilge, the first officer on the scene with Hightower, told officers heading to assist him that a crowd was forming, and he asked officers to step it up, according to police radio traffic that can be heard on a video.

Zilge was aware that Hightower had been combative with police in the past, according to a review by the Olmsted County attorney's office. It looked at the case to avoid a conflict of interest for its Ramsey County counterpart.

The newly released squad car video, in which a camera is trained on the back seat of Zilge's squad, shows what happened when officers were trying to get Hightower into the car. Hightower can be heard on the video saying he did nothing wrong, and an officer tells him, "Have a seat." Hightower does not.

Hightower then asks police, "Please wipe my face, please?" Zilge had used a chemical spray on Hightower while was trying to arrest him, when Hightower wouldn't comply with "repeated verbal requests to get on the ground," the county attorney's review said.

On the video, officers can be heard shouting at Hightower to get in the squad car. Hightower does not get in and says, "Man, what am I being arrested for? I ain't did nothing wrong. Assault on who?"

Gorans goes around to the other side of the squad car and, reaching across the back seat, pulls Hightower by his shirt.

Someone can be heard on the video saying, "Head first then, head first then." Hightower says that he will sit.

Gorans pulls Hightower into the car by his hair and sprays Hightower with pepper spray in his ear.

Hightower asks again during the ride to jail why he is being arrested. Zilge tells him it was because of what he did the night before. When Hightower asks another time, Zilge says, "I told you, Eric, several times. Either you're not getting it or you're dumb."

At another point, Hightower says to Zilge, "I'm burning, man! Please hurry up. I'm burning! My eye and my ear!" He asks Zilge, "Please, can you squirt some water back here, please?" As they arrive at the jail, Hightower pleads to have someone wipe his eyes.

The policy further states that it's not mandatory for all suspects exposed to ASR to be taken to a medical facility. They are to "be put in front of a fan in the headquarters' garage or at the Ramsey County Law Enforcement Center until they are able to keep their eyes open," the policy says.

Greg Connor, a retired police officer and former University of Illinois Police Training Institute professor who taught officers in use of force, said he has never heard of officers being trained to spray a chemical irritant into someone's ear and doesn't know why an officer would do it. Officers normally are trained to spray a chemical at a suspect's face with the goal of getting the irritant into the eye, nose and/or mouth, incapacitating the person to put handcuffs on or get him or her onto the ground.

Connor, who viewed the video Monday, said because most of Hightower's body was already in the squad car when the officer sprayed him, he didn't see why the chemical spray was needed. Connor said he found the focus of the spray into the ear to be inappropriate.

Martin of the NAACP questioned why police hadn't wiped Hightower's face off when he asked them to.

"What's the purpose of doing that to another human being who is cuffed in the back of a squad car, who is not going to harm any other human being?" he said. "It's simple basic humanity."

St. Paul police spokesman Howie Padilla said the department couldn't talk about any actions seen on the video because of an ongoing internal investigation.

St. Paul police released the videos in response to a Pioneer Press request. The police union said it objected to the city releasing the videos, saying it violates the state's Peace Officer Discipline Procedures Act.

"Any member of the public viewing the video or the pictures out of context and apart from the rest of the investigation and circumstances surrounding the Hightower arrest could easily draw false conclusions about what occurred," said Wachtler, the police union attorney. "The release could also prejudice any grievance process ... from discipline that may be imposed in this case."

Padilla said the department consulted with attorneys before releasing the videos.

The police department hasn't said what the chief decided as a result of the internal affairs investigation of Zilge and Gorans.
Under state law, disciplinary action against public employees becomes public when a final disposition is reached. Discipline is not imposed officially until after appeals are exhausted.

Hightower Pleaded Guilty
The county attorney's review of the case found "insufficient proof beyond a reasonable doubt" that either Zilge or Gorans "used unreasonable force during the arrest of Hightower."

But Martin said for the actions to have been captured on video and "for these officers not to be charged takes away faith we have in the criminal justice system to be fair and impartial. To say they didn't go beyond what they were called to do, I think is ludicrous."

Wachtler said the "officers involved in the Hightower arrest acted within policy, and pursuant to their training."

The Olmsted County attorney's office review said that when Zilge encountered Hightower, the man wasn't following commands and eventually got on the ground but not onto his stomach as Zilge had ordered. Zilge kicked Hightower in the upper chest as he moved in to handcuff him.

When officers had Hightower on his feet, the man turned his body in a way that police "characterized as an effort to head-butt Officer Zilge," the review said. "The two officers act quickly and take Hightower towards a nearby squad car and force his upper body onto the hood of the squad car."

As officers tried to get Hightower into the back of the squad car, Hightower resisted and Gorans went around to the other side, crawled across the back seat, grabbed Hightower and pulled his upper body onto the seat , the county attorney's review said. Hightower's feet were still outside the car, and two officers were trying to get his feet into the car.

"At that point(,) Officer Gorans uses his Mace and sprays it into Hightower's face and right ear," the review said. Officers were then able to get Hightower completely into the car.

The county attorney's review also said, "Medical personnel suspect that Hightower had a punctured ear drum but the medical reports are inconsistent in this diagnosis."

Hightower pleaded guilty in May to gross misdemeanor domestic assault in the case he was being arrested for in August and is to be sentenced July 18. He is in prison for violating probation on an unrelated 2011 assault charge.

Federal officials have been looking into possible civil rights violations in the arrest. The local FBI office recently sent results of its investigation to the U.S. attorney's office in Minnesota to consider whether charges are warranted, according to the FBI.